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District Court 28 July 2023

R v Bright

[2023] NSWDC 672

Sexual offences

Citation: R v Bright [2023] NSWDC 672
Court: District Court of New South Wales
Date: 28 July 2023
Judge(s): Baker SC DCJ

Background

Police executed a Commonwealth search warrant at the offender's home on 9 June 2022, discovering him at his computer actively viewing and downloading child abuse material. Officers seized multiple electronic devices, DVD and Blu-ray discs, printed images, comic books, and physical packaging, all containing child abuse material. The offender was arrested that day and has remained in custody since.

The offender was aged between 51 and 53 during the offending period. He lived alone, had worked as a forklift driver and store person for 25 years, and had left school after Year 8. Apart from minor property, traffic and assault offences (the last in 2007), he had no recent prior criminal history.

He pleaded guilty to both charges at Penrith Local Court on 16 December 2022, and the matter was committed to the District Court for sentencing.

  • What was the appropriate sentence for possession of child abuse material under s 474.22A of the Criminal Code Act 1995 (Cth), carrying a maximum of 15 years imprisonment?
  • What was the appropriate sentence for possession of child abuse material under s 91H(2) of the Crimes Act 1900 (NSW), carrying a maximum of 10 years imprisonment?
  • How should the two sentences be structured, given the overlap between the Commonwealth and State offences?
  • What weight should be given to the offender's guilty pleas, personal circumstances, diagnosed paedophilic disorder, and Bugmy considerations (the relevance of deprived or disadvantaged background to moral culpability)?
  • What conditions should attach to the offender's eventual release on parole to address rehabilitation and community protection?

Decision

The court assessed the objective seriousness of the offending as very high. Across all devices, police located 24,529 video files, 628,092 picture files, and 39,553 text files constituting child abuse material. The sample descriptions tendered by the Crown depicted the sexual abuse of very young female children, some aged as young as toddlers, and included cartoon and photographic material of extreme content. The court emphasised that the sheer volume and the gravity of the material placed this offending at the serious end of the spectrum.

On the subjective side, the court gave consideration to the offender's psychiatric diagnosis of paedophilic disorder, his largely reclusive lifestyle, and his background, including his early departure from education and social isolation. The court applied the Bugmy principles, acknowledging that disadvantage can diminish moral culpability, although in the context of such serious offending this carried limited mitigating weight. The court also noted that less weight is afforded to prior good character where the nature of the offences is of this kind.

A 25% reduction was applied to both sentences to reflect the guilty pleas, entered at an early stage, which saved the court time and spared victims from further distress. The court structured the sentences with partial concurrency, acknowledging the overlap in subject matter between the Commonwealth and State charges while ensuring the total sentence reflected the full criminality involved.

Orders Made

  • State offence (Sequence 2, s 91H(2) Crimes Act 1900 (NSW)): 2 years' imprisonment commencing 9 June 2022, expiring 8 June 2024; non-parole period of 1 year and 4 months, expiring 8 October 2023.
  • Commonwealth offence (Sequence 1, s 474.22A Criminal Code Act 1995 (Cth)): 6 years' imprisonment commencing 9 February 2023, expiring 8 February 2029; non-parole period of 3 years and 9 months, expiring 8 November 2026.
  • The offender will serve a total of 4 years and 5 months in custody before becoming eligible for parole; if parole is granted, 2 years and 3 months will be served in the community.
  • Parole conditions to include supervision by the Department of Community Corrections, compliance with directions as to ongoing treatment and counselling, and referral to a NSW Corrective Services psychologist for a sex offender risk assessment and case management guidance.
  • A copy of the psychiatric report of Dr Stephen Allnutt (dated 1 March 2023) to be provided to those responsible for supervising the offender.
  • Forfeiture order made by consent in accordance with the Crown's proposed order.

Key Takeaways

  • The District Court treated the combination of the material's volume (over 692,000 files) and its extreme content as placing this offending firmly at the serious end of the range for child abuse material possession offences.
  • Where an offender faces both a Commonwealth and a State charge arising from overlapping conduct, the court must structure the sentences to avoid double punishment while still reflecting the full extent of the criminality involved.
  • A 25% discount for an early guilty plea was applied across both the Commonwealth and State offences, consistent with established sentencing principles.
  • Under the Bugmy principles, a deprived or disadvantaged background may reduce moral culpability, but the court's application of those principles here resulted in limited mitigation given the gravity of the offending.
  • Diagnosed paedophilic disorder featured in the court's assessment of rehabilitation prospects, and the sentencing orders included detailed parole conditions directed at ongoing psychological treatment and risk management.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 474.22A
- Crimes Act 1900 (NSW), s 91H(2)
- Crimes Act 1914 (Cth), s 19AB(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Bugmy v The Queen [2013] HCA 37; 249 CLR 572
- R v Hutchinson [2018] NSWCCA 152
- Grange v R [2023] NSWCCA 6
- Lloyd v R [2022] NSWCCA 18
- Dungay v R [2020] NSWCCA 209
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- R v De Leeuw [2015] NSWCCA 183
- R v Porte [2015] NSWCCA 174
- Minehan v R [2010] NSWCCA 140
- Dennis v The Queen [2017] VSCA 251
- Hutchison v R [2022] VSCA 217
- Mertell v The King [2022] ACTCA 69
- Godfrey v The Queen [2013] WASCA 247
- R v Edwards [2019] QCA 15
- DPP v Latham [2009] TASSC 101